Hawkins v. Regional Medical Laboratories, P.C.

• Decision Date: 23 December 1982
• Docket Number: Docket No. 64302,J,No. 2,2
• Parties: Pietrina HAWKINS, Executrix of the Estate of Larry M. Hawkins, Deceased, Plaintiff-Appellant, v. REGIONAL MEDICAL LABORATORIES, P.C., C.M. Spencer, M.D., Richard A. Collins, M.D., William D. Walters, M.D., Richard H. Allen, M.D., and College Street Orthopaedics, P.C., Defendants- A une Term 1981. Calendar415 Mich. 420, 329 N.W.2d 729
• Court: Michigan Supreme Court

Page 729

329 N.W.2d 729

Pietrina HAWKINS, Executrix of the Estate of Larry M.

Hawkins, Deceased, Plaintiff-Appellant, v. REGIONAL MEDICAL LABORATORIES, P.C., C.M. Spencer, M.D., Richard A. Collins, M.D., William D. Walters,

M.D., Richard H. Allen, M.D., and

College Street Orthopaedics,

P.C.,

Defendants-

A

Docket No. 64302, June Term 1981.

Calendar No. 2.

415 Mich. 420, 329 N.W.2d 729

Supreme Court of Michigan.

Argued June 2, 1981.

Decided Dec. 23, 1982.

Charfoos, Christensen, Gilbert & Archer, P.C. by John G. Konkel, and J. Douglas Peters, Detroit, for plaintiff-appellant, Pietrina Hawkins.

James M. Sullivan, Sullivan, Hamilton, Ryan & Schulz, Battle Creek, for defendants-appellees.

RYAN, Justice.

Plaintiff, as executrix for the estate of her deceased husband, Larry M. Hawkins, brought suit against defendants alleging medical malpractice resulting in death.

In March of 1975, Dr. Spencer removed a tumor-like mass from the hip of Mr. Hawkins. A specimen was examined by Dr. Collins, a member of Regional Medical Laboratories, who diagnosed it as non-cancerous. The wound did not heal as expected and there continued an excess accumulation and drainage of fluid. A specimen of fluid was examined by Dr. Walters who also found no evidence of malignancy. Mr. Hawkins failed to recover and on April 29, 1975 he was transferred to the University of Michigan Hospital in Ann Arbor. After that date, none of the defendants rendered any further treatment or services to Mr. Hawkins.

Very shortly after his transfer to Ann Arbor, Mr. Hawkins' condition was diagnosed as a malignant fibrous histiocytoma (cancerous tumor). As treatment, he underwent a hemipelvectomy (amputation of one leg and half the pelvis). In her complaint, plaintiff alleges that, despite this surgery, a subsequent spread of the malignancy caused Mr. Hawkins' death on January 27, 1976.

On January 6, 1978, plaintiff filed this action, claiming that defendants' medical malpractice caused her husband's death. Defendants moved for accelerated judgment, claiming that the suit was barred by the malpractice statute of limitations. M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4). The motion was denied. On appeal the Court of Appeals reversed, holding that proper application of the statute barred the action.

We granted leave to appeal primarily to determine "whether plaintiff's claim under the wrongful death act accrued on the date of [the decedent's] death or in accordance with the accrual provisions of the malpractice statute of limitations (M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838)". 410 Mich. 870 (1980).

I

An appreciation of several statutory provisions involved in this dispute is necessary for an understanding of the discussion which follows.

M.C.L. Sec. 600.2921; M.S.A. Sec. 27A.2921, dealing with the survival of actions, states:

"All actions and claims survive death. Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section. If an action is pending at the time of death the claims may be amended to bring it under the next section. A failure to so amend will amount to a waiver of the claim for additional damages resulting from death."

M.C.L. Sec. 600.2922; M.S.A. Sec. 27A.2922, is the wrongful death statute. Its pertinent provisions are:

"(1) Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.

"(2) Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recovered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death."

M.C.L. Sec. 600.5805; M.S.A. Sec. 27A.5805 sets out various limitations periods. Its applicable provisions before its amendment in 1978 were:

"No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

* * *

"(3) The period of limitations is 2 years for actions charging malpractice.

* * *

"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property." ¹

M.C.L. Sec. 600.5827; M.S.A. Sec. 27A.5827 provides:

"Except as otherwise expressly provided; the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results."

M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838 referred to by the above provision, prior to amendment in 1975, stated:

"A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose." ²

A

Plaintiff's fundamental contention is that the wrongful death statute creates a new and independent cause of action which arises only at death. Therefore, she argues, the limitation period cannot begin to run until that cause of action "accrues" at death. Defendants counter that the limitations period begins running on the date of last treatment as provided for medical malpractice actions in M.C.L. Sec. 600.5827; M.S.A. Sec. 27A.5827 and M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838.

A proper understanding of the history of the wrongful death act is essential for an adequate understanding of our resolution of the issue.

Prior to 1939, two statutes existed under which an action could be brought in cases of injury resulting in death: the survival act and the wrongful death act. Early in its history, Michigan adopted a rather liberal "survival act" to preserve causes of action which, under common law, were terminated by the death either of the person injured or the tortfeasor. 1846 Rev.Stats., ch. 101, Sec. 5. This act was amended by 1885 P.A. 113 and 1897 P.A. 148 to include, as surviving actions, fraud, deceit and negligent injuries to persons. It was perpetuated in this form by the former Judicature Act (former 1915 C.L. 12383; 1929 C.L. 14040) and read:

"In addition to the actions which survive by the common law the following shall also survive, that is to say, actions of replevin, actions for the conversion of property, for deceit, for assault and battery, for false imprisonment, for negligent injuries to persons, for damages done to real and personal estate, and actions to recover real estate, or any interest therein, where persons have been induced to part with the same through fraudulent representations and deceit." (Emphasis added.)

In 1848, pursuant to 1848 P.A. 38, the so-called "death act" was passed and remained unchanged until amended in 1939. Prior to the 1939 amendment, Sec. 1 of the act (1929 C.L. 14061) read:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured."

The interplay between these two statutes was examined by this Court in Ford v. Maney's Estate, 251 Mich. 461, 464-465, 232 N.W. 393 (1930):

"The courts are in conflict upon the respective scope and operation of the death act and survival statute. LRA 1915E, 1119, note; LRA 1916C, 973, note. In this State it is held that the death act created a cause of action unknown to the common law, not by way of survival of a right accruing to the deceased which before had abated at [his] death, but as a new and special remedy accruing to those who suffer loss by the death; and that the legislature did not intend to give two remedies for death by negligent act, but that the death act and the survival act is each exclusive within its sphere. The line of cleavage between them is whether the death is instantaneous. The legal test of instantaneous death was devised in order to afford a practical working of the statutes, death being seldom instantaneous in fact. The test was established, not in an attempt to bring the acts into harmony with common-law principles but by way of judicial interpretation of legislative intention in the construction of statutes which change the common law and have points of conflict. Sweetland v Chicago & GTR Co, 117 Mich 329 [75 NW 1066 (1898) ]; Dolson v Lake Shore & MSR Co, 128 Mich 444 [87 NW 629 (1901) ]; Lincoln v Detroit & MR Co, 179 Mich 189 [146 NW...